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What is going to happen to DACA under President Trump?

By Joseph G. Ballstaedt

While on the campaign trail, Trump promised to repeal DACA, but his tone has changed since being elected. Should DACA recipients feel safe or should they be worried?

DACA, or the Deferred Action for Childhood Arrivals, is a program that began under President Obama. OnJune 15, 2012, he announced that the U.S. Department of Homeland Security (DHS) would not deport undocumented youth who came to the United States as children and met other criteria. These beneficiaries of DACA are often called “Dreamers.” They receive two-year work permits that can be renewed and that keep them from being categorized as deportation priorities.

Generally, people are eligible for DACA if they:

  1. Were under age 31 on June 15, 2012;
  2. Came to the United States before reaching the age of 16;
  3. Continuously resided in the U.S. since June 15, 2007 to the present;
  4. Were physically present in the U.S. on June 15, 2012, and when requesting DACA;
  5. Had no lawful status on June 15, 2012;
  6. Are currently in school or have graduated or obtained a certificate of completion from high school, have obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces; and
  7. Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not pose a threat to national security or public safety.

During his campaign, Trump promised to end DACA and start the deportation process of about 750,000 people who were brought to the U.S. as children. Just after being elected, however, Trump took a softer approach, suggesting he would replace DACA with something that would allow younger immigrants to remain in the U.S. He also told ABC News that DACA recipients “shouldn’t be worried.” Recently, his tone has even become sympathetic. He emotionally referred to his own children and grandchildren and expressed anguish at the prospect of deporting millions of young people whose only known home has been the U.S. “We are gonna deal with DACA with heart,” he said, calling the DACA issue “a very, very difficult subject for me” and terming many Dreamers as “some absolutely incredible kids.”

Now that Trump has shown sympathy toward Dreamers, some feel that Trump has placed himself in a tough spot, potentially unable to fulfill his campaign promise. Even if Trump does not end DACA himself, it has been reported that two immigration policy advisors to the White House see at least two options ending DACA without directly involving Trump.

The first option would be through state lawsuits. A few state governors are reportedly considering a challenge to DACA. This challenge would be patterned after lawsuits in 2014 that halted President Obama’s efforts to expand DACA. If states sue, Attorney General Jeff Sessions, who criticized deportation relief as a senator, could instruct his lawyers not to defend DACA in court, and DACA would likely be suspended.

The second option would be for Sessions to direct lawyers at the Department of Justice (DOJ) to review DACA, and if the DOJ determines DACA to be illegal, they could then instruct the Department of Homeland Security (DHS) to stop issuing or renewing DACA work permits.

It is hard to say what will happen at this point, and, unfortunately, this uncertainty provides little relief to DACA recipients.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer for advice on specific legal issues.

 

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